Account Agreement
CharityAdvantage Website Services

Focus Point Media, Inc. is a company that provides website services to its customers (Organization) through its CharityAdvantage.com website. Services may include website building, website hosting, website technical support, and other technology services. This Services Agreement ("Agreement") governs Organization’s purchase and use, in any manner, of all services provided by Focus Point Media, Inc. and any of its affiliates (the "Services").

Organization must accept the terms of this Agreement in order to use the Services.

NOTWITHSTANDING, BY USING THE SERVICES, ORGANIZATION ACKNOWLEDGES THAT ORGANIZATION HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.

1. Term and Payment for Services


Paying for Services Using Our Recurring Monthly Debit system


1.1. Term
Focus Point Media, Inc. may provide its Services on a Monthly basis by charging a one-time setup fee at the current rate displayed on the CharityAdvantage website and the first month of service to a credit/debit card or checking account supplied by Organization. Organization’s account will then be placed on the Focus Point Media, Inc. recurring monthly debit system. For Organizations using this payment method, this Agreement shall be for an "Initial Term" of 30 days. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term on a monthly basis, unless Organization provides Focus Point Media, Inc. with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term. Organization must provide Focus Point Media, Inc. with Organization’s notice of termination by using the cancellation form located by logging into Organization’s CharityAdvantage account. Any notice of termination will be effective following thirty (30) days after Focus Point Media, Inc.'s receipt thereof. Focus Point Media, Inc. reserves the right to not renew this agreement.

1.2. Termination Policy
If Organization terminates Organization’s receipt of the Services prior to the end of the Initial Term or the Renewal Term, Focus Point Media, Inc. will not refund to Organization any fees paid in advance of such termination unless otherwise expressly provided in this Agreement. Organization’s termination request or notice must be submitted to Focus Point Media, Inc. in the manner described in Section 1.1. Focus Point Media, Inc. may terminate this Agreement at any time and for any reason by providing to Organization written notice thirty (30) days prior to the date of termination. If Focus Point Media, Inc. terminates this Agreement, Focus Point Media, Inc. will refund to Organization the pro-rata portion of prepaid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided in this Agreement.

1.3. Termination: Use of Products/Services
Once an account has been terminated, Organization's website will no longer be available on the Internet. Focus Point Media, Inc. will not provide any products or services once an account is terminated.

1.4. Default and Cure
In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.

1.5. Charges
Organization agrees to pay for all charges attributable to Organization’s use of the Services at the then current Focus Point Media, Inc. prices, which shall be exclusive of any applicable taxes. Organization is responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services.

1.6. Payment
All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, when Organization chooses to pay by the recurring monthly debit system upon registering for the Services, Organization thereby authorizes Focus Point Media, Inc. to charge the credit/debit card or bank account supplied by Organization to pay for any charges that may apply to Organization’s account. Organization must notify Focus Point Media, Inc. of any changes to the credit/debit card or bank account (including, without limitation, applicable account number or cancellation or expiration of the account), billing address, or any information that may prohibit Focus Point Media, Inc. from charging the account supplied by Organization. If Organization fails to pay any fees and taxes by the applicable due date for payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law but at no time less than $15 shall also become payable by Organization to Focus Point Media, Inc. In addition, Organization’s failure to fully pay any fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and Focus Point Media, Inc. may, in addition to any other remedy it may suspend its performance of the Services and/or terminate this Agreement. Any such suspension or termination of the Services would not relieve Organization from paying past due fees plus interest. In the event of collection enforcement, Organization will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges are considered valid unless disputed in writing with sixty (60) days of the billing date. Adjustments will not be made for charges that are over 60 days old. Delinquent accounts may be suspended or canceled at Focus Point Media, Inc.'s sole discretion; however, charges will continue to accrue until the account is canceled. Organization understands that Organization is not entitled to any prorated refund due to Organization’s cancellation prior to the end of service. All payments are non refundable.

Term and Payment for Services - One-time Payment

1.7. Term
Focus Point Media, Inc. may provide its Services on a fixed period basis and in such cases, charges the account as authorized by Organization. Examples may include paying for 6-months or 12-months of Services at one time. Therefore, this Agreement shall be for an "Initial Term" of the fixed period basis at the time Organization makes payment for the Services. This Agreement can be automatically renewed (the "Renewal Term") at the end of the Initial Term, by paying Focus Point Media, Inc. the then current renewal price for Services. If Organization would like to cancel Services, Organization may provide Focus Point Media, Inc. with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term. Organization must provide Focus Point Media, Inc. with Organization’s notice of termination by using the cancellation form located by logging into Organization’s CharityAdvantage account. Any notice of termination will be effective following thirty (30) days after Focus Point Media, Inc.'s receipt thereof. Focus Point Media, Inc. reserves the right to not renew this agreement.

1.8. Termination Policy
If Organization terminates their receipt of the Services prior to the end of the Initial Term or the Renewal Term Focus Point Media, Inc. will not refund to Organization any fees paid in advance of such termination unless otherwise expressly provided in this Agreement. Organization’s termination request or notice must be submitted to Focus Point Media, Inc. in the manner described in Section 1.7. Focus Point Media, Inc. may terminate this Agreement at any time and for any reason by providing to Organization written notice thirty (30) days prior to the date of termination. If Focus Point Media, Inc. terminates this Agreement, Focus Point Media, Inc. will refund to Organization the pro-rata portion of prepaid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided in this Agreement.

1.9. Termination: Use of Products/Services
Once an account has been terminated, Organization's website will no longer be available on the Internet. Focus Point Media, Inc. will not provide any products or services once an account is terminated.

1.10. Default and Cure
In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.

1.11. Charges
Organization agrees to pay for all charges attributable to Organization’s use of the Services at the then current Focus Point Media, Inc. prices, which shall be exclusive of any applicable taxes. Organization is responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services.

1.12. Payment
All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, when Organization chooses to pay by direct charge to a credit/debit card or bank account, Organization thereby authorizes Focus Point Media, Inc. to charge the account supplied by Organization to pay for any charges that may apply to Organization’s account. Organization must notify Focus Point Media, Inc. of any changes to credit/debit card or bank account supplied by Organization (including, without limitation, applicable account number or cancellation or expiration of the account), billing address, or any information that may prohibit Focus Point Media, Inc. from charging the account supplied by Organization. If Organization fails to pay any fees and taxes by the applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law but at no time less than $15 shall also become payable by Organization to Focus Point Media, Inc. In addition, Organization’s failure to fully pay any fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and Focus Point Media, Inc. may, in addition to any other remedy it may suspend its performance of the Services and/or terminate this Agreement. Any such suspension or termination of the Services would not relieve Organization from paying past due fees plus interest. In the event of collection enforcement, Organization will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges are considered valid unless disputed in writing with sixty (60) days of the billing date. Adjustments will not be made for charges that are over 60 days old. Delinquent accounts may be suspended or canceled at Focus Point Media, Inc.'s sole discretion; however, charges will continue to accrue until the account is canceled. Organization understands that Organization is not entitled to any prorated refund due to customer cancellation prior to the end of service. All payments are non refundable.

2. Use of Services

2.1. Applicable Use Policy
The Focus Point Media, Inc. Acceptable Use Policy (the "Usage Policy") governs the general policies and procedures for use of the Services. The current Usage Policy applicable to this agreement is posted on the CharityAdvantage website and may be updated from time-to-time. ORGANIZATION SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, ORGANIZATION AGREES TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. FOCUS POINT MEDIA, INC. RESERVES THE RIGHT TO TERMINATE ORGANIZATION’S ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.

2.2. Services

a. Building the Initial Website
Focus Point Media, Inc. customers receive website services. The initial website building services include the building of a website of up to 10 pages using content provided by Organization. The website will be built using a design that Organization chooses from a list of website "templates" that Focus Point Media, Inc. supplies. Focus Point Media, Inc. will not customize a template or create a unique design for Organization. Organization will provide all of the initial content data for the website using the requirements in section 2.3. Focus Point Media, Inc. does not build custom websites, including those with advanced features that require the use of a custom online database and/or custom programming.

b. Website Content Maintenance
Once the initial website is built, Organization will be provided with a user login to a web-based interface. Using this interface, Organization will be able to add/delete standard web pages, as well as edit the content on existing web pages using systems supplied by Focus Point Media, Inc. Focus Point Media, Inc. is not responsible for the ongoing maintenance of website content.

c. Technical Support
Throughout the term of this Agreement, Focus Point Media, Inc. shall provide limited, basic technical support to Organization, the nature and extent of which shall be at the sole and reasonable discretion of Focus Point Media, Inc.

d. Online Donations System
Organization may opt to use the online donations form provided by Focus Point Media, Inc. on their website. For this form to be functional, Organization must setup and maintain a PayPal account using the PayPal website. Focus Point Media, Inc. does not have a business relationship with PayPal. All financial transactions and financial responsibilities are between Organization and PayPal. Focus Point Media, Inc. only supplies the technology for the transactions to be sent to PayPal for processing using the Organization's PayPal account. Organization is responsible for meeting any/all applicable laws governing the rules, procedures, and other for receiving donations through its website including but not limited to State Charitable Registration, tax-exempt status, donor receipting and other. Organization understands that Focus Point Media, Inc. provides “technology services”. Focus Point Media, Inc. makes no claims as to the success of an online donations service on Organization’s website and is not responsible for supplying Organization with donors.

2.3. Material and Product Requirements
Organization will enter website content (text and/or images) at a location or using a method determined by Focus Point Media, Inc. Focus Point Media, Inc. is not responsible for supplying, writing and/or editing any content data for Organization's website including text, images and other content data. Unless it has been agreed otherwise in a separate agreement in writing, Organization must ensure that all material and data supplied to Focus Point Media, Inc. and placed on Focus Point Media, Inc.'s equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Focus Point Media, Inc. Focus Point Media, Inc. will make no effort to validate any of this information for content, correctness or usability. If Organization’s material is not "server-ready", Focus Point Media, Inc. has the option at any time to reject this material. Focus Point Media, Inc. will notify Organization of its refusal of the material and afford Organization the opportunity to amend or modify the material to satisfy the needs and/or requirements of Focus Point Media, Inc. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of Organization’s website. Organization must have the necessary knowledge to use the Focus Point Media, Inc. web-based interface(s). It is not the responsibility of Focus Point Media, Inc.'s to provide this knowledge or customer support outside of the Services agreed to by Organization and Focus Point Media, Inc.

2.4. Data Storage Usage and Bandwidth

The Focus Point Media, Inc. Service comes with a total data storage limit of 100 MB. Organization must obtain approval to have a website with more than 200 web pages. Focus Point Media, Inc. retains the right to refuse Service to Organization if there are over 200 web pages in the Organization’s website.

The Focus Point Media, Inc. Service comes with bandwidth. To prevent an abuse of services, Focus Point Media, Inc. retains the right to terminate the account of Organization if the Organization’s website traffic causes slower web server activity for other Focus Point Media, Inc. customers.

Organization agrees that use of the Services under this Agreement will not exceed the bandwidth and storage usage deemed acceptable by Focus Point Media, Inc. If Organization uses any bandwidth or storage space that Focus Point Media, Inc. deems as "excess", Organization understand that Organization’s account may be terminated by Focus Point Media, Inc.


3. Enforcement


3.1. Investigation of Violations
Focus Point Media, Inc. may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. Focus Point Media, Inc. will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

3.2. Actions
Focus Point Media, Inc. reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by Organization of this Agreement, any related policies or guidelines, third party rights or laws, Focus Point Media, Inc. may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Focus Point Media, Inc.'s systems, and/or (d) disabling or removing any hypertext links to third party websites, any of Organization’s content distributed or made available for distribution via the Services, or other content not supplied by Focus Point Media, Inc. which, in Focus Point Media, Inc.'s sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Focus Point Media, Inc. to civil or criminal liability or public ridicule. It is Focus Point Media, Inc.'s policy to terminate infringers. Focus Point Media, Inc.'s right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If Focus Point Media, Inc. takes corrective action due to such possible violation, Focus Point Media, Inc. shall not be obligated to refund to Organization any fees paid in advance of such corrective action.

3.3. Disclosure Rights
To comply with applicable laws and lawful governmental requests, to protect Focus Point Media, Inc.'s systems and customers, or to ensure the integrity and operation of Focus Point Media, Inc.'s business and systems, Focus Point Media, Inc. may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Focus Point Media, Inc.'s servers and systems. Focus Point Media, Inc. also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

4. Intellectual Property Rights


4.1. Your License Grant to Focus Point Media, Inc.
Organization hereby grants to Focus Point Media, Inc. a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use Organization’s content as necessary for the purposes of rendering and operating the Services to Organization under this Agreement. Organization expressly (a) grant to Focus Point Media, Inc. a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of Organization’s intellectual property rights or any third party's intellectual property rights.

4.2. Focus Point Media, Inc. Materials and Intellectual Property
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Focus Point Media, Inc. or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Focus Point Media, Inc. to provide the Services to Organization, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Focus Point Media, Inc. or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Focus Point Media, Inc. during the term of this Agreement.

Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on any such software is expressly forbidden except as permitted in this Agreement. Organization may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

Focus Point Media, Inc. owns the Intellectual Property associated with the "Template", design and format of Organization’s website. Therefore, it is a breach of this agreement to copy the website produced at Focus Point Media, Inc. to another web server for use on the Internet or any other media. When the Focus Point Media, Inc. Service is terminated, Organization’s website can no longer be used elsewhere.

Focus Point Media, Inc. does not own the Intellectual Property associated with any data Organization supplies as website content. Focus Point Media, Inc. does not own, will not use except for the purposes of providing services, give, rent or sell to a third party, any data provided by users interacting with Organization’s website or any data provided by Organization as entered in a database(s) stored on Focus Point Media, Inc. servers for Organization’s behalf.

4.3. Trademarks
Organization hereby grants to Focus Point Media, Inc. a limited right to use Organization trademarks, if any, for the limited purpose of permitting Focus Point Media, Inc. to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of Organization trademarks or to use Organization trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.


5. Warranty; Warranty Disclaimer


5.1. Customer and/or Third Party Acts
Focus Point Media, Inc. is not responsible in any manner for any nonconforming Services to the extent caused by Organization or Organization’s customers. In addition, Focus Point Media, Inc. is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond Focus Point Media, Inc.'s reasonable control.

5.2. No Express or Implied Warranty
ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY FOCUS POINT MEDIA, INC. UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. ORGANIZATION ACKNOWLEDGES AND AGREES THAT FOCUS POINT MEDIA, INC. EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH FOCUS POINT MEDIA, INC.’S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. FOCUS POINT MEDIA, INC. DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FOCUS POINT MEDIA, INC. DOES NOT MAKE AND HEREBY DISCLAIMS, AND ORGANIZATION HEREBY WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.

5.3 Your Warranties and Representations to Focus Point Media, Inc.
You warrant, represent, and covenant to Focus Point Media, Inc. that (a) you are at least eighteen (18) years of age; (b) are a duly organized and validly existing nonprofit entity; (c) you possess the legal right and ability to enter into this Agreement; (d) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (e) you will be financially responsible for the use of your account; (f) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party websites or other content; (g) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (h) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.


6. Limitation and Exclusion of Liability


6.1. Limitations
IN NO EVENT SHALL FOCUS POINT MEDIA, INC. HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO FOCUS POINT MEDIA, INC., DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. FOCUS POINT MEDIA, INC. SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF FOCUS POINT MEDIA, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF FOCUS POINT MEDIA, INC. TO ORGANIZATION FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO FOCUS POINT MEDIA, INC. BY ORGANIZATION UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY FOCUS POINT MEDIA, INC. UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, ORGANIZATION HEREBY RELEASE FOCUS POINT MEDIA, INC. FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

6.2. Interruption of Service
Organization hereby acknowledges and agrees that Focus Point Media, Inc. will not be liable for any temporary delay, outages or interruptions of the Services. Further, Focus Point Media, Inc. shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).

6.3. Maintenance
Organization hereby acknowledges and agrees that Focus Point Media, Inc. reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. Focus Point Media, Inc. will use best efforts to notify Organization of pending maintenance however at no time is under any obligation to inform Organization of such maintenance.

7. Indemnification

Organization will defend, indemnify and hold harmless Focus Point Media, Inc. and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) Organization’s violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) Organization’s conduct, including but not limited to Organization negligence, gross negligence, or willful misconduct; (iii) Organization’s use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of Organization whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Focus Point Media, Inc.; or (v) any claim relating to Organization’s services or products, or Organization’s installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or nonproprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).


8. Miscellaneous


8.1 Confidentiality
The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.

8.2. Notices
All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, and shall be delivered by one or more of the following methods: (a) hand delivery, (b) certified or registered mail, return receipt requested, postage prepaid, (c) national prepaid overnight delivery service, (d) confirmed telecopy or other facsimile transmission (following with hard copies to be sent by national prepaid overnight delivery service or (d) electronic mail, and shall be deemed to have been duly given when delivered.

8.3. Choice of Law and Forum
THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN SAN DIEGO COUNTY CALIFORNIA, AND ORGANIZATION IRREVOCABLY CONSENTS TO THE JURISDICTION OF SUCH COURTS.

8.4. Entire Agreement
This Agreement and all policies and guidelines incorporated in this Agreement by reference constitute the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.

8.5. No Employment; No Fiduciary Relationship; No Third Party Beneficiaries
Focus Point Media, Inc. is an independent contractor and nothing in this Agreement shall be construed to create an employer-employee, agency, joint venture, partnership or fiduciary relationship between the parties. Neither party has any right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against or in the name of or on behalf of the other party hereto.

Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

8.6. Assignments
Organization may not transfer or assign Organization’s rights, duties, or obligations under this Agreement without the prior written consent of Focus Point Media, Inc. Focus Point Media, Inc. may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without Organization’s consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.

8.7. No Waiver
Focus Point Media, Inc.'s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Focus Point Media, Inc.'s right to subsequently enforce such provision or any other provisions under this Agreement.

8.8. Severability
If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

8.9. Survival
All provisions of this Agreement relating to Organization’s warranties, intellectual property rights, limitation and exclusion of liability, Organization’s indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.